PC - 2011-04 - Amending Title 17 Zoning of the City's Municipal Code Adding Chapter 17.106 Prohibiting Medical Marijuana Dispensaries CitywidePC RESOLUTION 11- 04
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
ROSEMEAD, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
RECOMMENDING CITY COUNCIL APPROVE ORDINANCE NO. 910, AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD,
CALIFORNIA, AMENDING TITLE 17 "ZONING" OF THE CITY'S
MUNICIPAL CODE ADDING CHAPTER 17.106 PROHIBITING MEDICAL
MARIJUANA DISPENSARIES CITYWIDE.
WHEREAS, the City of Rosemead has adopted the General Plan and Zoning
Ordinance, and map, including specific development standards to control development;
and
WHEREAS, Section 17.116.010 of the Rosemead Municipal Code authorize the
Planning Commission to consider and recommend proposed municipal code amendments
to the City Council; and
WHEREAS, the Rosemead Municipal Code, including Title 17 (Zoning Code), does
not address or regulate in any manner the existence or location of medical marijuana
dispensaries; and
WHEREAS, Ordinance No. 910 is a City initiated amendment to revise Title 17
(Zoning) of the Rosemead Municipal Code. The purpose of the amendment is to address
the siting of medical marijuana dispensaries within the City; and
WHEREAS, in 1996, the voters of the State of California approved Proposition 215,
which was codified as Health and Safety Code Section 11362.5 and following, and entitled
the Compassionate Use Act of 1996 (the "Act "); and
WHEREAS, the intent of Proposition 215 was to enable seriously ill Californians to
legally possess, use, and cultivate marijuana under limited, specified circumstances; and
WHEREAS, on January 1, 2004, Senate Bill ( "SB ") 420 went into effect. SB 420 was
enacted by the Legislature to clarify the scope of the Act, and to allow cities and counties to
adopt and enforce rules and regulations consistent with SB 420 and the Act. These new
regulations and rules became known as the Medical Marijuana Program which, among other
things, enhanced the access of patients and caregivers to medical marijuana through
collective, cooperative cultivation projects; and
WHEREAS, neither Proposition 215 nor SB 420 authorizes medical marijuana
dispensaries; and
WHEREAS, a number of cities in Los Angeles County have prohibited or imposed
moratoria on medical marijuana dispensaries. This situation creates a substantially
increased likelihood persons will seek to locate such establishments within the City of
Rosemead, thus creating a potential current and immediate threat to the public health, safety,
or welfare; and
WHEREAS, in April 2009, the California Police Chiefs Association Task Force on
Marijuana Dispensaries published a White Paper discussing the negative secondary effects
of medical marijuana dispensaries on the health, safety, and welfare of the communities
where they have been established. The report analyzes several negative secondary effects
including armed robberies, murders, burglaries, drug dealing, money laundering, and
organized crime. The report states, "Because they are repositories of valuable marijuana
crops and large amounts of cash, several operators of dispensaries have been attacked and
murdered by armed robbers both at their storefronts and homes, and such places have been
regularly burglarized. Drug dealing, sales to minors, loitering, heavy vehicle and foot traffic in
retail areas, increased noise, and robberies of customers just outside dispensaries are also
common ancillary byproducts of their operations. To repel store invasions, firearms are often
kept on hand inside dispensaries, and firearms are used to hold up their proprietors."
(California Police Chiefs Association's Task Force on Marijuana Dispensaries White Paper at
page V.); and
WHEREAS, the Supreme Court of the United States ruled in United States v. Oakland
Cannabis Buyers' Cooperative (2001) 532 U.S. 483, that notwithstanding California law, the
federal Controlled Substances Act continues to prohibit marijuana use, distribution, and
possession, and that no medical necessity exception exists to these prohibitions; and
WHEREAS, the Supreme Court of the United States ruled in Gonzales v. Raich
(2005) 545 U.S. 1, that pursuant to the commerce clause, the federal government has the
power to prohibit the local cultivation and use of marijuana, even though such cultivation and
use complies with California law; and
WHEREAS, in Gonzales v. Raich, the Supreme Court of the United States did not
indicate that California law was invalid, but rather, merely indicated that the federal
government could continue to enforce its medicinal marijuana laws; and
WHEREAS, based upon its concerns regarding the adverse impacts on those
communities where medical marijuana dispensaries have been established, and until the
inconsistency between federal and state law is finally resolved, and until additional
information regarding the impacts of medical marijuana dispensing is considered, it is in the
best interests of the City of Rosemead to prohibit medical marijuana dispensaries within the
City; and
WHEREAS, on February 25, 2011 notices were posted in six (6) public locations
and a notice was published in the San Gabriel Valley Tribune specifying the public
comment period and the time and place for a public hearing pursuant to California
Government Code Section 65091(a)(3); and
WHEREAS, on March 7, 2011, the Planning Commission held a duly noticed and
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advertised public hearing to receive oral and written testimony relative to Ordinance No.
910; and
WHEREAS, the Rosemead Planning Commission has sufficiently considered all
testimony presented to them in order to make the following determination;
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of
Rosemead as follows:
SECTION 1. The Planning Commission finds that these regulations are is enacted in
order to mitigate the threat posed to the public peace, health, or safety by medical marijuana
dispensaries. In this regard, the findings set forth in Section 2 of this Resolution are
incorporated herein by reference. This Resolution provides for zoning regulations which are
specifically applicable to medical marijuana dispensaries and this ordinance is not subject to
the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of
the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has
no potential for resulting in physical change to the environment, directly or indirectly.
SECTION 2 . Findings. The Planning Commission of the City of Rosemead hereby
incorporates the foregoing recitals as findings of fact and further finds and declares that:
(a) California courts have not decided any case involving an express ban on
medical marijuana dispensaries. However, in City of Corona v. Naulls (2008) and City of
Claremont v. Kruse (2009), appellate courts upheld the application of municipal zoning
regulations against medical marijuana dispensaries and affirmed permanent injunctions
against the dispensary operators.
(b) In Qualified Patients Association v. City of Anaheim ( 2010), the awaited
appellate outcome of which formed a basis for the City's previous medical marijuana
dispensary moratorium, a medical marijuana dispensary operator challenged Anaheim's
expressly- stated ban on medical marijuana dispensaries, which also imposed criminal
penalties on operators. The trial court dismissed the suit on multiple grounds, including the
ground that federal law preempted the CUA and MMPA. The Court of Appeal reversed on
the limited ground that federal law did not preempt the CUA and MMPA. The Court of
Appeal did not decide the issue of whether the City's ordinance was permissible under the
MMPA, but the opinion suggested that the legality of such an express ban was an open
question.
(c) Naulls and Kruse remain the only controlling cases on the permissible scope
of regulation of storefront medical marijuana dispensaries. While these cases favor the
ability to ban dispensaries, the scope of municipal regulation of medical marijuana
continues to be the subject of litigation. Further court guidance will be needed to resolve
this issue.
(d) Ordinance No. 910 would expressly prohibit medical marijuana dispensaries
in all zones of the City. Further, medical marijuana dispensaries could not be established
or operated, which is defined to mean the conversion of an existing business or the
addition of a medical marijuana dispensary to an existing use.
(e) The term "medical marijuana dispensary" is defined in Ordinance No. 910 in
such a way as to ensure that the ban does not prohibit a qualified patient's ability to
possess, cultivate, or use medical marijuana in his or her own residence or to prohibit a
primary caregiver from providing medical marijuana to his or her qualified patient.
SECTION 3 . The Planning Commission HEREBY FINDS AND DETERMINES that
Ordinance 910 is in the best interest of the public necessity and general welfare, and good
city planning practice dictates and supports the proposed amendment, in that the change
to the Rosemead Municipal Code will provide a superior level of planning and protection to
the quality and character of the City.
SECTION 4 . The Planning Commission FINDS AND DETERMINES that Ordinance
910 is consistent with the Rosemead General Plan as follows:
FINDING: The medical marijuana prohibition is consistent with General Plan Land
Use Goal 2, which elaborates on expanded opportunities for concentrated commercial and
industrial uses that contribute jobs and tax revenues to the community. Prohibiting
medical marijuana in the City will create attractive and dynamic pedestrian - friendly activity
nodes and commercial centers, encourage continued development of self sustaining
commercial uses within centers located at strategic intersections, and rigorously enforce
property maintenance standards for commercial and industrial properties.
SECTION 5. The Planning Commission does HEREBY RECOMMEND that Chapter
17.106 (Medical Marijuana Dispensaries) of the Rosemead Municipal Code be added to
read as provided in Ordinance 910.
SECTION 6. The Planning Commission HEREBY RECOMMENDS CITY COUNCIL
APPROVAL of Ordinance 910 amending regulations for medical marijuana dispensaries
within the City of Rosemead.
SECTION 7. This resolution is the result of an action taken by the Planning
Commission on March 7, 2011 by the following vote:
YES: ENG, HERRERA, HUNTER, AND RUIZ
NO: NONE
ABSENT: NONE
ABSTAIN: ALARCON
SECTION 8. The secretary shall certify to the adoption of this resolution and shall
transmit copies of same to the applicant and the Rosemead City Clerk.
PASSED, APPROVED and ADOPTED this 7 day of March, 2011.
s
William Alarcon, Chairman
CERTIFICATION
I hereby certify that the foregoing is a true copy of a resolution adopted by the Planning
Commission of the City of Rosemead at its regular meeting, held on 7` day of March,
2011, by the following vote:
YES: ENG, HERRERA, HUNTER, AND RUIZ
NO: NONE
ABSENT: NONE
ABSTAIN: ALARCON P
Stan Wong /Secretary